AB104

Assembly Bill No. 104–Committee on Judiciary

(On Behalf of the Department of Transportation)

February 13, 2003

____________

Referred to Committee on Judiciary

SUMMARY—Reduces concentration of alcohol that may be present in blood or breath of person while operating vehicle or vessel. (BDR 43‑545)

FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State: Yes.

EXPLANATION – Matter in bolded italics is new; matter between brackets [~~omitted material]~~ is material to be omitted.

Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

AN ACT relating to driving under the influence of alcohol or a controlled substance; reducing the concentration of alcohol that may be present in the blood or breath of a person while operating a vehicle or vessel; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 483.045 is hereby amended to read as follows:

1-2 483.045 The phrase “concentration of alcohol of 0.02 or more

1-3 but less than [0.10] 0.08 in his blood or breath” means 0.02 gram or

1-4 more but less than [0.10] 0.08 gram of alcohol per 100 milliliters of

1-5 the blood of a person or per 210 liters of his breath.

1-6 Sec. 2. NRS 483.461 is hereby amended to read as follows:

1-7 483.461 1. If the result of a test given pursuant to NRS

1-8 484.382 or 484.383 shows that a person less than 21 years of age

1-9 had a concentration of alcohol of 0.02 or more but less than [0.10]

1-10 0.08 in his blood or breath at the time of the test, his license, permit

1-11 or privilege to drive must be suspended for a period of 90 days.

1-12 2. If a revocation or suspension of a person’s license, permit or

1-13 privilege to drive for a violation of NRS 62.227, 484.379 or

2-1 484.3795 follows a suspension ordered pursuant to subsection 1, the

2-2 Department shall:

2-3 (a) Cancel the suspension ordered pursuant to subsection 1; and

2-4 (b) Give the person credit toward the period of revocation or

2-5 suspension ordered pursuant to NRS 62.227, 484.379 or 484.3795,

2-6 whichever is applicable, for any period during which the person’s

2-7 license, permit or privilege to drive was suspended pursuant to

2-8 subsection 1.

2-9 3. This section does not preclude:

2-10 (a) The prosecution of a person for a violation of any other

2-11 provision of law; or

2-12 (b) The suspension or revocation of a person’s license, permit or

2-13 privilege to drive pursuant to any other provision of law.

2-14 Sec. 3. NRS 483.462 is hereby amended to read as follows:

2-15 483.462 1. A peace officer who has received the result of a

2-16 test given pursuant to NRS 484.382 or 484.383 which indicates that

2-17 a person less than 21 years of age to whom the test was given had a

2-18 concentration of alcohol of 0.02 or more but less than [0.10] 0.08 in

2-19 his blood or breath shall prepare a written certificate indicating

2-20 whether the peace officer:

2-21 (a) Had reasonable grounds to believe that the person was

2-22 driving under the influence of alcohol;

2-23 (b) Served an order of suspension on the person pursuant to

2-24 subsection 2; and

2-25 (c) Issued the person a temporary license pursuant to

2-26 subsection 2.

2-27 2. If a person less than 21 years of age to whom a test is given

2-28 pursuant to NRS 484.382 or 484.383 is present when a peace officer

2-29 receives the result of the test and the test indicates that the person

2-30 has a concentration of alcohol of 0.02 or more but less than [0.10]

2-31 0.08 in his blood or breath, the peace officer shall:

2-32 (a) Serve an order of suspension of the license, permit or

2-33 privilege;

2-34 (b) Seize any license or permit of the person;

2-35 (c) Advise the person of his right to:

2-36 (1) Administrative and judicial review of the suspension; and

2-37 (2) Have a temporary license;

2-38 (d) If the person requests a temporary license, issue the person a

2-39 temporary license on a form approved by the Department which

2-40 becomes effective 24 hours after he receives the temporary license

2-41 and expires 120 hours after it becomes effective; and

2-42 (e) Transmit to the Department:

2-43 (1) Any license or permit seized pursuant to paragraph (b);

2-44 and

3-1 (2) The written certificate which the peace officer is required

3-2 to prepare pursuant to subsection 1.

3-3 3. If a person less than 21 years of age to whom a test is given

3-4 pursuant to NRS 484.382 or 484.383 is not present when a peace

3-5 officer receives the result of the test and the test indicates that the

3-6 person has a concentration of alcohol of 0.02 or more but less than

3-7 [0.10] 0.08 in his blood or breath, the peace officer shall transmit to

3-8 the Department a copy of the result of the test and the written

3-9 certificate which the peace officer is required to prepare pursuant to

3-10 subsection 1.

3-11 4. The Department, upon receiving a copy of the result of the

3-12 test and the written certificate transmitted by the peace officer

3-13 pursuant to subsection 3, shall:

3-14 (a) Review the result of the test and the written certificate; and

3-15 (b) If the Department determines that it is appropriate, issue an

3-16 order to suspend the license, permit or privilege to drive of the

3-17 person by mailing the order to the person at his last known address.

3-18 5. An order for suspension issued by the Department pursuant

3-19 to subsection 4 must:

3-20 (a) Explain the grounds for the suspension;

3-21 (b) Indicate the period of the suspension;

3-22 (c) Require the person to transmit to the Department any license

3-23 or permit held by the person; and

3-24 (d) Explain that the person has a right to administrative and

3-25 judicial review of the suspension.

3-26 6. An order for suspension issued by the Department pursuant

3-27 to subsection 4 is presumed to have been received by the person 5

3-28 days after the order is deposited, postage prepaid, in the United

3-29 States mail by the Department. The date of mailing of the order may

3-30 be shown by a certificate that is prepared by an officer or employee

3-31 of the Department specifying the date of mailing.

3-32 Sec. 4. NRS 483.463 is hereby amended to read as follows:

3-33 483.463 1. At any time during which the license, permit or

3-34 privilege to drive is suspended pursuant to NRS 483.462, the person

3-35 may request in writing a hearing by the Department to review the

3-36 order of suspension. A person is entitled to only one administrative

3-37 hearing pursuant to this section.

3-38 2. Unless the parties agree otherwise, the hearing must be

3-39 conducted within 15 days after receipt of the request or as soon

3-40 thereafter as is practicable in the county in which the requester

3-41 resides.

3-42 3. The Director or his agent may:

3-43 (a) Issue subpoenas for:

3-44 (1) The attendance of witnesses at the hearing; and

3-45 (2) The production of relevant books and papers; and

4-1 (b) Require a reexamination of the requester.

4-2 4. The scope of the hearing must be limited to the issues of

4-3 whether the person, at the time of the test:

4-4 (a) Was less than 21 years of age; and

4-5 (b) Had a concentration of alcohol of 0.02 or more but less than

4-6 [0.10] 0.08 in his blood or breath.

4-7 5. The Department shall issue the person a temporary license

4-8 for a period that is sufficient to complete the administrative hearing.

4-9 6. Upon an affirmative finding on the issues listed in

4-10 subsection 4, the Department shall affirm the order of suspension.

4-11 Otherwise, the order of suspension must be rescinded.

4-12 7. If the order of suspension is affirmed by the Department, the

4-13 person is entitled to judicial review of the issues listed in subsection

4-14 4 in the manner provided in chapter 233B of NRS.

4-15 8. The court shall notify the Department upon issuing a stay.

4-16 Upon receiving such notice, the Department shall issue an additional

4-17 temporary license for a period that is sufficient to complete the

4-18 judicial review.

4-19 9. The hearing officer or the court shall notify the Department

4-20 if the hearing officer grants a continuance of the administrative

4-21 hearing or the court grants a continuance after issuing a stay of the

4-22 suspension. Upon receiving such notice, the Department shall cancel

4-23 any temporary license granted pursuant to this section and notify the

4-24 holder by mailing an order of cancelation to the last known address

4-25 of the holder.

4-26 Sec. 5. NRS 484.038 is hereby amended to read as follows:

4-27 484.038 The phrase “concentration of alcohol of [0.10] 0.08 or

4-28 more in his blood or breath” means [0.10] 0.08 gram or more of

4-29 alcohol per 100 milliliters of the blood of a person or per 210 liters

4-30 of his breath.

4-31 Sec. 6. NRS 484.379 is hereby amended to read as follows:

4-32 484.379 1. It is unlawful for any person who:

4-33 (a) Is under the influence of intoxicating liquor;

4-34 (b) Has a concentration of alcohol of [0.10] 0.08 or more in his

4-35 blood or breath; or

4-36 (c) Is found by measurement within 2 hours after driving or

4-37 being in actual physical control of a vehicle to have a concentration

4-38 of alcohol of [0.10] 0.08 or more in his blood or breath,

4-39 to drive or be in actual physical control of a vehicle on a highway or

4-40 on premises to which the public has access.

4-41 2. It is unlawful for any person who:

4-42 (a) Is under the influence of a controlled substance;

4-43 (b) Is under the combined influence of intoxicating liquor and a

4-44 controlled substance; or

5-1 (c) Inhales, ingests, applies or otherwise uses any chemical,

5-2 poison or organic solvent, or any compound or combination of any

5-3 of these, to a degree which renders him incapable of safely driving

5-4 or exercising actual physical control of a vehicle,

5-5 to drive or be in actual physical control of a vehicle on a highway or

5-6 on premises to which the public has access. The fact that any person

5-7 charged with a violation of this subsection is or has been entitled to

5-8 use that drug under the laws of this state is not a defense against any

5-9 charge of violating this subsection.

5-10 3. It is unlawful for any person to drive or be in actual physical

5-11 control of a vehicle on a highway or on premises to which the public

5-12 has access with an amount of a prohibited substance in his blood or

5-13 urine that is equal to or greater than:

5-14 Prohibited substance Urine Blood

5-15 Nanograms Nanograms

5-16 per milliliterper milliliter

5-17 (a) Amphetamine 500 100

5-18 (b) Cocaine 150 50

5-19 (c) Cocaine metabolite 150 50

5-20 (d) Heroin 2,000 50

5-21 (e) Heroin metabolite:

5-22 (1) Morphine 2,000 50

5-23 (2) 6-monoacetyl morphine 10 10

5-24 (f) Lysergic acid diethylamide 25 10

5-25 (g) Marijuana 10 2

5-26 (h) Marijuana metabolite 15 5

5-27 (i) Methamphetamine 500 100

5-28 (j) Phencyclidine 25 10

5-29 4. If consumption is proven by a preponderance of the

5-30 evidence, it is an affirmative defense under paragraph (c) of

5-31 subsection 1 that the defendant consumed a sufficient quantity of

5-32 alcohol after driving or being in actual physical control of the

5-33 vehicle, and before his blood or breath was tested, to cause him to

5-34 have a concentration of alcohol of [0.10] 0.08 or more in his blood

5-35 or breath. A defendant who intends to offer this defense at a trial or

5-36 preliminary hearing must, not less than 14 days before the trial or

5-37 hearing or at such other time as the court may direct, file and serve

5-38 on the prosecuting attorney a written notice of that intent.

5-39 Sec. 7. NRS 484.3795 is hereby amended to read as follows:

5-40 484.3795 1. A person who:

5-41 (a) Is under the influence of intoxicating liquor;

6-1 (b) Has a concentration of alcohol of [0.10] 0.08 or more in his

6-2 blood or breath;

6-3 (c) Is found by measurement within 2 hours after driving or

6-4 being in actual physical control of a vehicle to have a concentration

6-5 of alcohol of [0.10] 0.08 or more in his blood or breath;

6-6 (d) Is under the influence of a controlled substance or is under

6-7 the combined influence of intoxicating liquor and a controlled

6-8 substance;

6-9 (e) Inhales, ingests, applies or otherwise uses any chemical,

6-10 poison or organic solvent, or any compound or combination of any

6-11 of these, to a degree which renders him incapable of safely driving

6-12 or exercising actual physical control of a vehicle; or

6-13 (f) Has a prohibited substance in his blood or urine in an amount

6-14 that is equal to or greater than the amount set forth in subsection 3

6-15 of NRS 484.379,

6-16 and does any act or neglects any duty imposed by law while driving

6-17 or in actual physical control of any vehicle on or off the highways of

6-18 this state, if the act or neglect of duty proximately causes the death

6-19 of, or substantial bodily harm to, a person other than himself, is

6-20 guilty of a category B felony and shall be punished by imprisonment

6-21 in the state prison for a minimum term of not less than 2 years and a

6-22 maximum term of not more than 20 years and must be further

6-23 punished by a fine of not less than $2,000 nor more than $5,000. A

6-24 person so imprisoned must, insofar as practicable, be segregated

6-25 from offenders whose crimes were violent and, insofar as

6-26 practicable, be assigned to an institution or facility of minimum

6-27 security.

6-28 2. A prosecuting attorney shall not dismiss a charge of

6-29 violating the provisions of subsection 1 in exchange for a plea of

6-30 guilty, guilty but mentally ill or nolo contendere to a lesser charge or

6-31 for any other reason unless he knows or it is obvious that the charge

6-32 is not supported by probable cause or cannot be proved at the time

6-33 of trial. A sentence imposed pursuant to subsection 1 may not be

6-34 suspended nor may probation be granted.

6-35 3. If consumption is proven by a preponderance of the

6-36 evidence, it is an affirmative defense under paragraph (c) of

6-37 subsection 1 that the defendant consumed a sufficient quantity of

6-38 alcohol after driving or being in actual physical control of the

6-39 vehicle, and before his blood or breath was tested, to cause him to

6-40 have a concentration of alcohol of [0.10] 0.08 or more in his blood

6-41 or breath. A defendant who intends to offer this defense at a trial or

6-42 preliminary hearing must, not less than 14 days before the trial or

6-43 hearing or at such other time as the court may direct, file and serve

6-44 on the prosecuting attorney a written notice of that intent.

7-1 4. If the defendant was transporting a person who is less than

7-2 15 years of age in the motor vehicle at the time of the violation, the

7-3 court shall consider that fact as an aggravating factor in determining

7-4 the sentence of the defendant.

7-5 Sec. 8. NRS 484.384 is hereby amended to read as follows:

7-6 484.384 1. If the result of a test given under NRS 484.382 or

7-7 484.383 shows that a person had a concentration of alcohol of [0.10]

7-8 0.08 or more in his blood or breath at the time of the test, his

7-9 license, permit or privilege to drive must be revoked as provided in

7-10 NRS 484.385 and he is not eligible for a license, permit or privilege

7-11 for a period of 90 days.

7-12 2. If a revocation of a person’s license, permit or privilege to

7-13 drive under NRS 62.227 or 483.460 follows a revocation under

7-14 subsection 1 which was based on his having a concentration of

7-15 alcohol of [0.10] 0.08 or more in his blood or breath, the

7-16 Department shall cancel the revocation under that subsection and

7-17 give the person credit for any period during which he was not

7-18 eligible for a license, permit or privilege.

7-19 3. Periods of ineligibility for a license, permit or privilege to

7-20 drive which are imposed pursuant to this section must run

7-21 consecutively.

7-22 Sec. 9. NRS 484.385 is hereby amended to read as follows:

7-23 484.385 1. As agent for the Department, the officer who

7-24 obtained the result of a test given pursuant to NRS 484.382 or

7-25 484.383 shall immediately serve an order of revocation of the

7-26 license, permit or privilege to drive on a person who has a

7-27 concentration of alcohol of [0.10] 0.08 or more in his blood or

7-28 breath or has a detectable amount of a prohibited substance in his

7-29 blood or urine, if that person is present, and shall seize his license or

7-30 permit to drive. The officer shall then advise him of his right to

7-31 administrative and judicial review of the revocation and to have a

7-32 temporary license, and shall issue him a temporary license on a form

7-33 approved by the Department if he requests one, which is effective

7-34 for only 7 days including the date of issuance. The officer shall

7-35 immediately transmit the person’s license or permit to the

7-36 Department along with the written certificate required by

7-37 subsection 2.

7-38 2. When a police officer has served an order of revocation of a

7-39 driver’s license, permit or privilege on a person pursuant to

7-40 subsection 1, or later receives the result of an evidentiary test which

7-41 indicates that a person, not then present, had a concentration of

7-42 alcohol of [0.10] 0.08 or more in his blood or breath or had a

7-43 detectable amount of a prohibited substance in his blood or urine,

7-44 the officer shall immediately prepare and transmit to the

7-45 Department, together with the seized license or permit and a copy of

8-1 the result of the test, a written certificate that he had reasonable

8-2 grounds to believe that the person had been driving or in actual

8-3 physical control of a vehicle with a concentration of alcohol of

8-4 [0.10] 0.08 or more in his blood or breath or with a detectable

8-5 amount of a prohibited substance in his blood or urine, as

8-6 determined by a chemical test. The certificate must also indicate

8-7 whether the officer served an order of revocation on the person and

8-8 whether he issued the person a temporary license.

8-9 3. The Department, upon receipt of such a certificate for which

8-10 an order of revocation has not been served, after examining the

8-11 certificate and copy of the result of the chemical test, if any, and

8-12 finding that revocation is proper, shall issue an order revoking the

8-13 person’s license, permit or privilege to drive by mailing the order to

8-14 the person at his last known address. The order must indicate the

8-15 grounds for the revocation and the period during which the person is

8-16 not eligible for a license, permit or privilege to drive and state that

8-17 the person has a right to administrative and judicial review of the

8-18 revocation and to have a temporary license. The order of revocation

8-19 becomes effective 5 days after mailing.

8-20 4. Notice of an order of revocation and notice of the

8-21 affirmation of a prior order of revocation or the cancelation of a

8-22 temporary license provided in NRS 484.387 is sufficient if it is

8-23 mailed to the person’s last known address as shown by any

8-24 application for a license. The date of mailing may be proved by the

8-25 certificate of any officer or employee of the Department, specifying

8-26 the time of mailing the notice. The notice is presumed to have been

8-27 received upon the expiration of 5 days after it is deposited, postage

8-28 prepaid, in the United States mail.

8-29 Sec. 10. NRS 484.387 is hereby amended to read as follows:

8-30 484.387 1. At any time while a person is not eligible for a

8-31 license, permit or privilege to drive following an order of revocation

8-32 issued pursuant to NRS 484.385, he may request in writing a

8-33 hearing by the Department to review the order of revocation, but he

8-34 is only entitled to one hearing. The hearing must be conducted

8-35 within 15 days after receipt of the request, or as soon thereafter as is

8-36 practicable, in the county where the requester resides unless the

8-37 parties agree otherwise. The Director or his agent may issue

8-38 subpoenas for the attendance of witnesses and the production of

8-39 relevant books and papers and may require a reexamination of the

8-40 requester. The Department shall issue an additional temporary

8-41 license for a period which is sufficient to complete the

8-42 administrative review.

8-43 2. The scope of the hearing must be limited to the issue of

8-44 whether the person, at the time of the test, had a concentration of

8-45 alcohol of [0.10] 0.08 or more in his blood or breath or a detectable

9-1 amount of a prohibited substance in his blood or urine. Upon an

9-2 affirmative finding on this issue, the Department shall affirm the

9-3 order of revocation. Otherwise, the order of revocation must be

9-4 rescinded.

9-5 3. If, after the hearing, the order of revocation is affirmed, the

9-6 person whose license, privilege or permit has been revoked is

9-7 entitled to a review of the same issues in district court in the same

9-8 manner as provided by chapter 233B of NRS. The court shall notify

9-9 the Department upon the issuance of a stay , and the Department

9-10 shall issue an additional temporary license for a period which is

9-11 sufficient to complete the review.

9-12 4. If a hearing officer grants a continuance of a hearing at the

9-13 request of the person whose license was revoked, or a court does so

9-14 after issuing a stay of the revocation, the officer or court shall notify

9-15 the Department, and the Department shall cancel the temporary

9-16 license and notify the holder by mailing the order of cancelation to

9-17 his last known address.

9-18 Sec. 11. NRS 488.405 is hereby amended to read as follows:

9-19 488.405 As used in NRS 488.410 and 488.420, the phrase

9-20 “concentration of alcohol of [0.10] 0.08 or more in his blood or

9-21 breath” means [0.10] 0.08 gram or more per 100 milliliters of the

9-22 blood of a person or per 210 liters of his breath.

9-23 Sec. 12. NRS 488.410 is hereby amended to read as follows:

9-24 488.410 1. It is unlawful for any person who:

9-25 (a) Is under the influence of intoxicating liquor;

9-26 (b) Has a concentration of alcohol of [0.10] 0.08 or more in his

9-27 blood or breath; or

9-28 (c) Is found by measurement within 2 hours after operating or

9-29 being in actual physical control of a vessel to have a concentration

9-30 of alcohol of [0.10] 0.08 or more in his blood or breath,

9-31 to operate or be in actual physical control of a vessel under power or

9-32 sail on the waters of this state.

9-33 2. It is unlawful for any person who:

9-34 (a) Is under the influence of a controlled substance;

9-35 (b) Is under the combined influence of intoxicating liquor and a

9-36 controlled substance; or

9-37 (c) Inhales, ingests, applies or otherwise uses any chemical,

9-38 poison or organic solvent, or any compound or combination of any

9-39 of these, to a degree which renders him incapable of safely

9-40 operating or exercising actual physical control of a vessel under

9-41 power or sail,

9-42 to operate or be in actual physical control of a vessel under power or

9-43 sail on the waters of this state.

9-44 3. It is unlawful for any person to operate or be in actual

9-45 physical control of a vessel under power or sail on the waters of this

10-1 state with an amount of a prohibited substance in his blood or urine

10-2 that is equal to or greater than:

10-3 Prohibited substance Urine Blood

10-4 Nanograms perNanograms

10-5 milliliterper milliliter

10-6 (a) Amphetamine 500 100

10-7 (b) Cocaine 150 50

10-8 (c) Cocaine metabolite 150 50

10-9 (d) Heroin 2,000 50

10-10 (e) Heroin metabolite:

10-11 (1) Morphine 2,000 50

10-12 (2) 6-monoacetyl morphine 10 10

10-13 (f) Lysergic acid diethylamide 25 10

10-14 (g) Marijuana 10 2

10-15 (h) Marijuana metabolite 15 5

10-16 (i) Methamphetamine 500 100

10-17 (j) Phencyclidine 25 10

10-18 4. If consumption is proven by a preponderance of the

10-19 evidence, it is an affirmative defense under paragraph (c) of

10-20 subsection 1 that the defendant consumed a sufficient quantity of

10-21 alcohol after operating or being in actual physical control of the

10-22 vessel, and before his blood was tested, to cause him to have a

10-23 concentration of [0.10] 0.08 or more of alcohol in his blood or

10-24 breath. A defendant who intends to offer this defense at a trial

10-25 or preliminary hearing must, not less than 14 days before the trial or

10-26 hearing or at such other time as the court may direct, file and serve

10-27 on the prosecuting attorney a written notice of that intent.

10-28 Sec. 13. NRS 488.420 is hereby amended to read as follows:

10-29 488.420 1. A person who:

10-30 (a) Is under the influence of intoxicating liquor;

10-31 (b) Has a concentration of alcohol of [0.10] 0.08 or more in his

10-32 blood or breath;

10-33 (c) Is found by measurement within 2 hours after operating or

10-34 being in actual physical control of a vessel under power or sail to

10-35 have a concentration of alcohol of [0.10] 0.08 or more in his blood

10-36 or breath;

10-37 (d) Is under the influence of a controlled substance or is under

10-38 the combined influence of intoxicating liquor and a controlled

10-39 substance;

10-40 (e) Inhales, ingests, applies or otherwise uses any chemical,

10-41 poison or organic solvent, or any compound or combination of any

10-42 of these, to a degree which renders him incapable of safely

11-1 operating or being in actual physical control of a vessel under power

11-2 or sail; or

11-3 (f) Has a prohibited substance in his blood or urine in an amount

11-4 that is equal to or greater than the amount set forth in subsection 3

11-5 of NRS 488.410,

11-6 and does any act or neglects any duty imposed by law while

11-7 operating or being in actual physical control of any vessel under

11-8 power or sail, if the act or neglect of duty proximately causes the

11-9 death of, or substantial bodily harm to, a person other than himself,

11-10 is guilty of a category B felony and shall be punished by

11-11 imprisonment in the state prison for a minimum term of not less

11-12 than 2 years and a maximum term of not more than 20 years and

11-13 shall be further punished by a fine of not less than $2,000 nor more

11-14 than $5,000. A person so imprisoned must, insofar as practicable, be

11-15 segregated from offenders whose crimes were violent and, insofar as

11-16 practicable, be assigned to an institution or facility of minimum

11-17 security.

11-18 2. A prosecuting attorney shall not dismiss a charge of

11-19 violating the provisions of subsection 1 in exchange for a plea of

11-20 guilty, guilty but mentally ill or nolo contendere to a lesser charge or

11-21 for any other reason unless he knows or it is obvious that the charge

11-22 is not supported by probable cause or cannot be proved at the time

11-23 of trial. A sentence imposed pursuant to subsection 1 must not be

11-24 suspended, and probation must not be granted.

11-25 3. If consumption is proven by a preponderance of the

11-26 evidence, it is an affirmative defense under paragraph (c) of

11-27 subsection 1 that the defendant consumed a sufficient quantity of

11-28 alcohol after operating or being in actual physical control of the

11-29 vessel under power or sail, and before his blood was tested, to cause

11-30 him to have a concentration of alcohol of [0.10] 0.08 or more in his

11-31 blood or breath. A defendant who intends to offer this defense at a

11-32 trial or preliminary hearing must, not less than 14 days before the

11-33 trial or hearing or at such other time as the court may direct, file and

11-34 serve on the prosecuting attorney a written notice of that intent.

11-35 4. If a person less than 15 years of age was in the vessel at the

11-36 time of the defendant’s violation, the court shall consider that fact as

11-37 an aggravating factor in determining the sentence of the defendant.

11-38 Sec. 14. NRS 202.257 is hereby amended to read as follows:

11-39 202.257 1. It is unlawful for a person who:

11-40 (a) Has a concentration of alcohol of 0.10 or more in his blood

11-41 or breath; or

11-42 (b) Is under the influence of any controlled substance, or is

11-43 under the combined influence of intoxicating liquor and a controlled

11-44 substance, or any person who inhales, ingests, applies or otherwise

11-45 uses any chemical, poison or organic solvent, or any compound or

12-1 combination of any of these, to a degree which renders him

12-2 incapable of safely exercising actual physical control of a

12-3 firearm,

12-4 to have in his actual physical possession any firearm. This

12-5 prohibition does not apply to the actual physical possession of a

12-6 firearm by a person who was within his personal residence and had

12-7 the firearm in his possession solely for self-defense.

12-8 2. Any evidentiary test to determine whether a person has

12-9 violated the provisions of subsection 1 must be administered in the

12-10 same manner as an evidentiary test that is administered pursuant to

12-11 NRS 484.383 to 484.3947, inclusive, except that submission to the

12-12 evidentiary test is required of any person who is directed by a police

12-13 officer to submit to the test. If a person to be tested fails to submit to

12-14 a required test as directed by a police officer, the officer may direct

12-15 that reasonable force be used to the extent necessary to obtain the

12-16 samples of blood from the person to be tested, if the officer has

12-17 reasonable cause to believe that the person to be tested was in

12-18 violation of this section.

12-19 3. Any person who violates the provisions of subsection 1 is

12-20 guilty of a misdemeanor.

12-21 4. A firearm is subject to forfeiture pursuant to NRS 179.1156

12-22 to 179.119, inclusive, only if, during the violation of subsection 1,

12-23 the firearm is brandished, aimed or otherwise handled by the person

12-24 in a manner which endangered others.

12-25 5. As used in this section, the phrase “concentration of alcohol

12-26 of 0.10 or more in his blood or breath” [has the meaning ascribed to

12-27 it in NRS 484.038.] means 0.10 gram or more of alcohol per 100

12-28 milliliters of the blood of a person or per 210 liters of his breath.

12-29 H